No. 19-670

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In The

Supreme Court of the United States

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ARNOLD FLECK,

Petitioner,

v.

JOE WETCH, et al.,

Respondents.

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On Petition For A Writ Of Certiorari To The United States Court Of Appeals

For The Eighth Circuit

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BRIEF IN OPPOSITION FOR PETRA MANDIGO HULM

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JAMES E. NICOLAI Counsel of Record OFFICE OF ATTORNEY GENERAL 500 N. 9th Street Bismarck, ND 58501 (701) 328-3640 jnicolai@nd.gov

================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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QUESTIONS PRESENTED

1. In Keller v. State Bar of California, 496 U.S. 1 (1990), this Court “agree[d] that lawyers admitted to practice in the State may be required to join and pay dues to the State Bar.” Id. at 4. The question presented is whether the requirement that North Dakota attor-neys join the state’s bar association violates the free-dom of association.

2. A fee statement is sent to North Dakota attor-neys setting forth an annual fee amount and stating that they may deduct a specified amount if they do not wish to pay for non-chargeable activities. The question presented is whether this procedure violates the First Amendment.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

TABLE OF CONTENTS ...................................... ii

TABLE OF AUTHORITIES ................................. iii

INTRODUCTION ................................................ 1

STATEMENT OF THE CASE.............................. 3

REASONS FOR DENYING THE PETITION ...... 9

I. Certiorari is not warranted on the first question presented .................................... 11

A. The courts below never addressed pe-titioner’s primary argument about an alleged ambiguity in Keller ................. 11

B. Harris v. Quinn signaled Keller’s con-tinuing vitality, creating reliance in-terests .................................................. 15

II. Certiorari is not warranted on the second question presented .................................... 17

A. There is no circuit split on the second question presented .............................. 17

B. The Eighth Circuit’s decision is sound even if Janus applies ........................... 18

CONCLUSION ..................................................... 21

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TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ............................................................... passim

Arizona v. Evans, 514 U.S. 1 (1995) ............................ 17

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .......... 14

Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986) ................................................. 19

Fleck v. Wetch, 139 S. Ct. 590 (2018) ............................ 7

Goodwin v. United States, 869 F.3d 636 (8th Cir. 2017) ........................................................................ 13

Harris v. Quinn, 573 U.S. 616 (2014) ................... 10, 16

Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) ............................................................... passim

Jarchow, et al. v. State Bar of Wisconsin, et al., (No. 19-831) ............................................................. 15

Keller v. State Bar of California, 496 U.S. 1 (1990) ............................................................... passim

Knox v. Service Employees International Union, Local 1000, 567 U.S. 298 (2012) ...................... 5, 6, 19

Lathrop v. Donohue, 367 U.S. 820 (1961) ........... passim

Meyer v. Berkshire Life Ins. Co., 372 F.3d 261 (4th Cir. 2004) .......................................................... 13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ................................. 1, 2, 5, 12, 18

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TABLE OF AUTHORITIES—Continued

Page

STATUTES

N.D. Cent. Code § 27-11-24 ........................................... 4

State Bar. N.D. Cent. Code § 27-11-02 ......................... 3

State Bar. N.D. Cent. Code § 27-12-02(1) ..................... 3

State Bar. N.D. Cent. Code § 27-12-04 ......................... 3

RULES

Sup. Ct. R. 35.3 ............................................................. 3

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INTRODUCTION

The principal issue presented by the petition is whether the requirement that North Dakota attorneys join the State Bar Association of North Dakota (State Bar) violates petitioner Fleck’s First Amendment right to freely associate. But Fleck changed his legal theory on this freedom-of-association claim twice midstream, after his initial appeal to the Eighth Circuit. As a con-sequence, Fleck now relies on a legal theory that was never addressed in the courts below. Fleck’s failure to timely assert his new theory makes this a singularly poor vehicle through which to address the first ques-tion presented.

In the district court and in his initial Eighth Cir-cuit appeal, Fleck repeatedly conceded that Keller v. State Bar of California, 496 U.S. 1 (1990), foreclosed his freedom-of-association claim, which could prevail only if this Court granted certiorari and overruled Keller. This concession stifled both the factual and legal de-velopment of the claim. Both the district court and the Eighth Circuit simply noted the concession and de-clined to address the claim.

After this Court granted certiorari, vacated the judgment, and remanded back to the Eighth Circuit, Fleck reversed course and maintained that Keller did not control his freedom-of-association claim, and that the Eighth Circuit was therefore not bound to apply Keller as directly-controlling precedent. The Eighth Circuit again declined to address the merits of the claim. Rather, the Eighth Circuit held the claim had

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been forfeited, noting Fleck’s “misrepresent[ations],” his reversal on Keller, and how his earlier concession prevented the claim’s factual development in the dis-trict court.

Now, in this second petition for writ of certiorari, Fleck changes his position yet again by contending the question of Keller’s application to his claim is ambigu-ous. But even if that is true, Keller’s alleged ambiguity was patent in the language of Keller itself and has ex-isted for many years, well before this Court’s recent de-cision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018). Given that Keller’s alleged ambiguity is unteth-ered to Janus, Fleck cannot use the latter case as an excuse for his earlier concessions. Fleck’s litigation tac-tics deprived the lower courts of the timely opportunity to address in the first instance whether, in fact, Keller left the issue open and, if it did, whether mandatory bar membership violates the freedom of association. With numerous other challenges to mandatory bar membership waiting in the wings, there is no reason for the Court to use this case as the vehicle through which to tackle this issue.

The second issue the petition presents—challeng-ing North Dakota’s specific bar fees procedure—is equally unworthy of this Court’s review. In the public union context, Janus held that the First Amendment requires the entity holding the purse strings to have the clear and affirmative consent of a non-union mem-ber before deducting union dues from wages. But in the integrated bar context, attorneys hold their own purse strings and have complete control over the amount

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they pay into North Dakota’s integrated bar. That is, the concepts of a “deduction” or an “opt out” are simply not the same when the choice is always the attorney’s to begin with. In short, North Dakota attorneys—who are “sophisticated and trained to understand legal communications”—exercise their own choice to fund the State Bar’s political activities by writing a check for a greater amount, or declining to do so by writing a check for a lesser amount. The clear and affirmative consent required by Janus is present, even assuming that requirement applies in this context.

On top of that, the petition presents no circuit split on the question whether Janus’s consent requirements apply to voluntary payments made into an integrated bar. Nor is the Eighth Circuit’s decision, which is fact-bound to the specific manner in which the State Bar administers its billing procedure, likely to have any ef-fect on other state bar associations. Certiorari should be denied.1

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STATEMENT OF THE CASE

North Dakota, like many other states, utilizes an integrated bar that requires every licensed lawyer to maintain membership in and pay annual dues to the State Bar. N.D. Cent. Code §§ 27-11-02, 27-12-02(1), 27-12-04. The lion’s share of the dues reflect the fee for the

1 Petra Mandigo Hulm is now the Secretary-Treasurer of the State Board of Law Examiners. Pursuant to Rule 35.3, Ms. Man-digo Hulm should be substituted for Penny Miller.

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privilege of practicing law in the state and are used to regulate matters germane to the practice of law. N.D. Cent. Code § 27-11-24; see also Pet. App. 30a (describ-ing the regulatory functions performed by the State Bar). But a small portion of the fee reflects the amount the State Bar uses for non-germane expenses that may include political speech. Pet. App. 30a; see also id. at 58a (indicating that $1.45 of the $380 annual license fee for the year 2018, for example, was for non- germane expenses).

When North Dakota attorneys receive their an-nual Statement of License Fees Due, each has the op-tion of writing a check or making payment for an amount that reflects just his or her annual license fee to practice law. Each attorney, if he or she chooses, may also voluntarily support the State Bar’s political speech by writing a check or making payment for the slightly greater amount that includes non-germane ex-penses; an amount expressly disclosed on the annual statement and accompanying instructions.

The non-chargeable expenses are clearly ex-plained on the fee statement as follows:

OPTIONAL: Keller deduction relating to nonchargeable activities. Members wanting to take this deduction may deduct $10.07 if pay-ing $380; $8.99 if paying $350; and $7.90 if paying $325. (See Insert.)

Pet. App. 10a. The referenced two-page insert is enti-tled Notice Concerning State Bar Dues Deduction and Mediation Process and explains both how the State

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Bar calculates non-germane activities and how mem-bers may object to that process. Id.

In 2015, petitioner Fleck filed suit against officers of the State Bar and the State Board of Law Examin-ers, alleging that the State Bar adopted an “opt out” procedure that violates his First Amendment rights by forcing him to pay compulsory fees to fund speech he opposes. Pet. App. 32a. Fleck also alleged that an inte-grated bar association inherently violates his freedom not to associate with an entity engaging in speech with which he disagrees, irrespective of whether he has to fund that speech. Id.

In the district court, Fleck conceded his freedom-of-association claim was foreclosed by Keller. The dis-trict court accepted Fleck’s concession and did not ad-dress that claim:

Although Fleck has conceded his third claim for relief is foreclosed by Supreme Court prec-edent, he asserts this long-standing precedent should be overturned by the Supreme Court on a future appeal on the basis that Keller and Lathrop [v. Donohue, 367 U.S. 820 (1961)] are irreconcilable with basic First Amendment principles and subsequent decisions and, in particular, the United States Supreme Court decision in Knox v. Serv. Emps. Int’l Union, 132 S. Ct. 2277 (2012). As Fleck has conceded his legal arguments are contrary to United States Supreme Court precedent directly on point, the Court will grant summary judg-ment in favor of the Defendants on the third claim for relief.

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Pet. App. 36a. The district court addressed Fleck’s chal-lenge to the State Bar’s billing procedures, and granted summary judgment against Fleck on that claim. Id. at 44a. Fleck appealed to the Eighth Circuit.

On appeal, Fleck again conceded his freedom-of-association claim was foreclosed by Keller. The Eighth Circuit accepted Fleck’s concession and did not address that claim. See Pet. App. 16a (“Second, Fleck alleged that an integrated bar violates his freedoms not to as-sociate and to avoid subsidizing speech with which he disagrees. . . . Fleck concedes we are bound by Keller, so we need not further address this issue.”). With re-spect to Fleck’s challenge to the State Bar’s billing pro-cedure, the Eighth Circuit affirmed the district court, concluding that “the opt-out issue debated by the Court in Knox[ v. Service Employees International Union, Lo-cal 1000, 567 U.S. 298 (2012)] is simply not implicated by SBAND’s revised license fee Statement.” Pet. App. 24a. Under the billing procedure used by the State Bar (referred to as “SBAND” in the Eighth Circuit) North Dakota attorneys are not compelled to opt out of com-pulsory fees automatically withheld by an employer, but instead voluntarily agree to pay into the State Bar “non-germane expenses by the affirmative act of writ-ing a check for the greater amount.” Id.

Shortly after the Eighth Circuit’s decision, this Court decided Janus, which involved public union dues withheld from the paychecks of non-union members. The Court held that the Free Speech Clause bars the government from compelling non-union members to pay agency fees that reimburse public-sector unions

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for their collective bargaining and related activities. 138 S.Ct. at 2460. The Court also held that public un-ions must obtain clear and affirmative consent before withholding union dues from a non-member’s wages. Id. at 2486. Fleck’s first petition for certiorari, in which he argued that Janus may impact his case, was pend-ing when Janus was decided. The Court summarily granted the petition and directed the Eighth Circuit to consider whether Janus impacted its earlier decision. See Fleck v. Wetch, 139 S. Ct. 590 (2018).

On remand, Fleck reversed course on whether Kel-ler foreclosed his freedom-of-association claim. Recog-nizing that the Eighth Circuit would be bound to apply a directly-controlling case even if Janus may have un-dermined its reasoning, Fleck now contended that his freedom-of-association claim was not controlled by Kel-ler. No. 16-1564, Appellant Br. 3-4 (8th Cir. Feb. 15, 2019). He now claimed that Keller included language declining to address a broader freedom-of-association claim like the one Fleck raises here. See Keller, 496 U.S. at 17 (“Petitioners challenge not only their com-pelled financial support of group activities, but urge that they cannot be compelled to associate with an or-ganization that engages in political or ideological ac-tivities beyond those for which mandatory financial support is justified under the principles of Lathrop and Abood [v. Detroit Board of Education, 431 U.S. 209 (1977)]. The California courts did not address this claim, and we decline to do so in the first instance.”) (internal citation and quotation marks omitted).

In his initial petition for writ of certiorari to this Court, Fleck claimed that the Eighth Circuit had

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decided his freedom-of-association claim was fore-closed by Keller. The Eighth Circuit specifically took Fleck to task for that assertion:

Fleck’s petition to the Supreme Court for a writ of certiorari misrepresented his position before our court. The petition stated that he “acknowledged [to the district court] that his challenge to mandatory bar membership was foreclosed by binding precedent.” But it then falsely asserted that our court “affirmed the dismissal of Fleck’s challenge to mandatory bar membership on the basis of ” Keller and Lathrop and asked the Supreme Court to “re-verse the Eighth Circuit’s decision and over-rule Keller and Lathrop.” Then on remand, he argued the constitutionality of mandatory bar association membership to this court for the first time, on a district court summary judg-ment record that did not address this issue, an issue a majority of the Court treated as highly fact-intensive in Lathrop.

Pet. App. 7a. The Eighth Circuit again declined to ad-dress the merits of Fleck’s freedom-of-association claim, noting that “Fleck explicitly chose not” to pursue that claim in the district court or the Eighth Circuit. Id. at 6a. The Eighth Circuit concluded that “the record is inadequate as the result of Fleck forfeiting the issue in the district court and on appeal” and therefore “we decline to invoke our discretion to take up this claim for the first time on remand.” Id. at 9a.

With respect to Fleck’s challenge to the State Bar’s billing procedure, the Eighth Circuit held that “Janus

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does not alter our prior decision[.]” Id. at 13a. The Eighth Circuit noted the distinction between the pro-cedure at issue in Janus, where union fees were de-ducted from a non-member’s wages, and the State Bar’s billing procedures, under which attorneys control the amount they pay into the association. “The mem-ber’s right to pay or refuse to pay dues to subsidize non-chargeable expenses is clearly explained on the fee statement and accompanying instructions, in advance of the member consenting to pay by delivering a check to SBAND.” Id. at 12a. And that consent is provided by an “audience [that] is sophisticated and trained to un-derstand and appreciate legal communications.” Id. at 11a. In other words, the clear and affirmative consent required by Janus is present.

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REASONS FOR DENYING THE PETITION

Neither question the petition presents is worthy of this Court’s review. On the freedom-of-association is-sue, the decision below never addressed petitioner’s primary argument about an alleged ambiguity in Kel-ler. This Court generally declines to review cases where the lower courts were deprived of an oppor-tunity to address the issue in the first instance. Fleck’s current argument that Keller is ambiguous was never timely presented below, where instead Fleck main-tained that Keller foreclosed his claim. Cases brought in other jurisdictions are likely to address whether Kel-ler controls and, if not, the constitutionality of manda-tory bar membership post-Janus. The Court would

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benefit from those questions actually being addressed by a lower court before it accepts review of the issue.

Second, the line between germane and non- germane expenses is not so vague as the petition con-tends, and is not a reason for reviewing Keller. Although Abood’s difficult-to-draw line between chargeable and nonchargeable union expenditures was abandoned in Janus, this Court previously signaled that its jurispru-dence on mandatory bar associations stands independ-ent of the “shaky foundation” of Abood. See Harris v. Quinn, 573 U.S. 616, 655-56 (2014).

Nor is certiorari warranted on the second question presented. The petition does not identify a current cir-cuit split on the question whether the clear and affirm-ative consent requirements of Janus should apply to voluntary payments into an integrated bar. Nor is there a circuit split on whether a procedure similar to the State Bar’s satisfies Janus’s requirements, even as-suming they apply. On top of that, the Eighth Circuit decision is sound. The State Bar’s billing procedure satisfies the clear and affirmative consent require-ments of Janus. Fleck’s “opt out” arguments simply do not apply where attorneys control their own purse strings before choosing to make payments that fund an integrated bar’s non-germane expenses.

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I. Certiorari is not warranted on the first question presented.

A. The courts below never addressed peti-tioner’s primary argument about an al-leged ambiguity in Keller.

Fleck’s petition emphasizes Keller’s alleged ambi-guity on the constitutionality of mandatory bar mem-bership as a primary reason why the Court should grant review in this case. See Pet. at 12-13, 19, 24-29. Yet Fleck never presented the issue of Keller’s ambigu-ity to the courts below; it is being presented for the first time in this petition. Because that issue was not passed on by the lower courts, granting review in this case would be improvident.

In the district court, Fleck not only conceded that his freedom-of-association claim “is presently fore-closed by Keller, 496 U.S. 1 and Lathrop, 367 U.S. at 843,” but insisted that the district court “must deny his motion for summary judgment as it relates [to] this claim.” D. Ct. Dkt. Civil No. 1:15-cv-13, 44 at 3. Conse-quently, the district court not only declined to address the merits of that claim, but also declined to address whether Keller actually foreclosed the claim, specifi-cally relying upon Fleck’s concession to grant sum-mary judgment. Pet. App. 36a.

In the initial proceedings before the Eighth Cir-cuit, Fleck repeatedly maintained the concession that Keller directly foreclosed his freedom-of-association claim, “acknowledg[ing] that binding precedent fore-closes this Court from granting relief on this

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alternative claim and present[ing] this issue here to preserve it for the proper forum. See Keller v. State Bar of Cal., 496 U.S. 1, 14 (1990).” No. 16-1564, Appellant Br. i n.1 (8th Cir. Apr. 29, 2016); see also id. at 8 (“Fleck acknowledges that this alternative claim challenging the constitutionality of mandatory bar association membership is foreclosed by Keller and Lathrop v. Donohue, 367 U.S. 820, 843 (1961), and that this Court must affirm the lower court’s judgment on this claim.”); id. at 15 (“Fleck acknowledges that binding precedent forecloses this Court from holding compelled member-ship and funding of SBAND unconstitutional. See Kel-ler, 496 U.S. at 1; Lathrop, 367 U.S. at 843.”).

Like the district court, the Eighth Circuit accepted Fleck’s concession that Keller controlled and thus never addressed the merits of the freedom-of-association claim, nor even the question whether Keller actually foreclosed the claim. See Pet. App. 16a. (“Second, Fleck alleged that an integrated bar violates his freedoms not to associate and to avoid subsidizing speech with which he disagrees. . . . Fleck concedes we are bound by Keller, so we need not further address this issue.”).2

2 The Eighth Circuit later summarized Keller by stating that it concluded “that an integrated bar can, consistent with the First Amendment, use a member’s compulsory fees to fund activities germane to ‘regulating the legal profession and improving the quality of legal services,’ but not to fund non-germane activities the member opposes. 496 U.S. at 13-14.” Pet. App. 18a. But that summary of Keller’s holding was made in the context of address-ing Fleck’s opt in/opt out claim, not his freedom-of-association claim.

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Although a court is not bound by a party’s conces-sion on a point of law, see, e.g., Goodwin v. United States, 869 F.3d 636, 639 (8th Cir. 2017), here both the district court and the Eighth Circuit accepted the con-cession. The concession and the lower courts’ ac-ceptance of it therefore defined the path of this litigation through multiple stages, stifling and delay-ing the respondents from developing a factual record on the merits of the freedom-of-association claim, or from developing legal arguments against the claim.3

When this Court remanded the case to the Eighth Circuit, Fleck reversed course, arguing for the first time that Keller did not control his freedom-of-associa-tion claim. No. 16-1564, Appellant Br. 3-4 (8th Cir. Feb. 15, 2019) (“Keller never actually decided the constitu-tionality of mandatory bar association membership, and is therefore not directly controlling on this ques-tion.”). The Eighth Circuit declined to address Fleck’s arguments because they were being raised for the first time on remand, “on a district court summary judg-ment record that did not address this issue, an issue a majority of the Court treated as highly fact intensive in Lathrop.” Pet. App. 7a.

3 It is entirely appropriate for a concession—even on a legal issue—to thereafter bind a party to prevent him from “gaining an improper advantage by withdrawing or distorting an earlier con-cession[.]” Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264, 266 (4th Cir. 2004) (rejecting the argument that “because [ERISA fi-duciary] status is a legal conclusion, the district court could not properly accept such a concession”).

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Based on Fleck’s concession, defendants did not place in the summary judgment record the types of detailed information discussed by the Supreme Court in Lathrop concerning the leg-islative decision to adopt an integrated bar in North Dakota, the extent to which this method of licensing and regulating the profes-sion burdens associational rights of North Dakota lawyers, and whether, if exacting scru-tiny is the governing standard, North Dakota can serve its “compelling state interests . . . through means [that are] significantly less re-strictive of associational freedoms.”

Id. at 8a-9a (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 680 (2000)). Found the court, “the record is inade-quate as the result of Fleck forfeiting the issue in the district court and on appeal.” Id. at 9a.

Fleck maintains that it was “odd[ ]” for the Eighth Circuit to deem his new argument forfeited since the prior proceedings had arisen before Janus. Pet. at 9 n.3. But Janus did not speak to whether or not Keller directly foreclosed Fleck’s freedom-of-association claim, permitted it, or was ambiguous. Keller either spoke to the validity of mandatory bar membership or it did not; Janus has nothing to say on the issue. Fleck could have pressed the point about Keller’s ambiguity throughout these proceedings, as the alleged ambigu-ity upon which he relies existed when Keller was de-cided. It was not “odd” of the Eighth Circuit to bar Fleck from asserting a fundamentally new argument three years into the litigation that was entirely avail-able to him from the outset.

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Fleck is likewise wrong in contending that this Court should grant review because the question whether Keller should be overruled is a question of pure law that needs no factual development. Again, the Eighth Circuit disagreed on that point and noted the “highly fact intensive” treatment of the issue in Lath-rop, and the lack of an adequate factual record in this case. Pet. App. 7a, 9a.

Fleck may have preserved his argument that this Court should overrule Keller. But his petition only fleetingly refers to that argument, not even stating the words stare decisis. The argument Fleck forfeited rests at the heart of his petition, making it a poor vehicle through which to address the freedom-of-association issue. Similar freedom-of-association claims are being litigated in Texas, Louisiana, Oklahoma, Oregon, Michigan, and Wisconsin. See, e.g., Jarchow, et al. v. State Bar of Wisconsin, et al., (No. 19-831). In the event the Court is inclined to consider Keller’s post-Janus vi-tality, those cases may provide better vehicles for the Court’s review than a case decided by the Eighth Cir-cuit on forfeiture grounds.

B. Harris v. Quinn signaled Keller’s con-

tinuing vitality, creating reliance inter-ests.

The petition also contends that the line between germane and non-germane expenses is vague—similar to the line between nonchargeable and chargeable un-ion expenses in Abood that Janus found difficult to

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draw—and that this Court should review Keller’s al-leged ambiguity for that reason. Pet. at 18-23. In Har-ris v. Quinn, however, the Court expressly declined to equate integrated bars and unions in this respect. Har-ris applied exacting scrutiny to the issue whether non-union home health care workers could be compelled to pay public union dues. In doing so, the Court rejected the argument that its refusal to extend Abood to such “quasi-public” employees would “call into question our decision[ ] in Keller,” stating instead that Keller

fits comfortably within the framework applied in the present case. Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory scheme. The portion of the rule that we upheld served the “State’s inter-est in regulating the legal profession and im-proving the quality of legal services.” States also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices. Thus, our decision in this case is wholly consistent with our hold-ing in Keller.

Harris, 573 U.S. at 655-56 (internal citations omitted).

By signaling strong support for Keller’s continued vitality, Harris affected the reliance factor relevant to the doctrine of stare decisis. When considering whether public unions’ settled reliance on Abood justified leav-ing it intact despite its reasoning, Janus held that “re-liance does not carry decisive weight” in part “because

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public-sector unions have been on notice for years re-garding this Court’s misgivings about Abood.” Janus, 138 S. Ct. at 2484. The Court then referred specifically to its decision in Harris in which it “cataloged Abood’s many weaknesses.” Id. In that very same decision, however, the Court sent the exact opposite message to integrated bar associations. The reliance factor there-fore supports retaining Keller even assuming tension exists between some of its reasoning and Janus.

II. Certiorari is not warranted on the second

question presented.

A. There is no circuit split on the second question presented.

This Court’s limited resources are generally re-served for those rules of law on which a circuit split has formed. Consequently, the Court’s general practice is to wait for multiple lower courts to address issues left unanswered in its decisions. See Arizona v. Evans, 514 U.S. 1, 24 n.1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized that when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appel-late courts may yield a better informed and more en-during final pronouncement by this Court.”). Yet Fleck does not even suggest that the lower courts are divided on the second question presented—whether the clear and affirmative consent requirements outlined in Ja-nus apply to, and are violated by, the voluntary pay-ments North Dakota attorneys choose to make into an integrated bar. And for good reason. The Eighth

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Circuit’s decision does not conflict with any decision by another circuit that has addressed a similar billing procedure in another state.

In addition, not every integrated bar is uniform in how it implements Keller in its operations or in collect-ing fees from members. See No. 16-1564 Amicus Curiae Brief of the Integrated State Bars of Alaska, Arizona, Kentucky, Michigan, South Dakota, and Wyoming in Support of Appellees and Affirmance 6-13 (8th Cir. April 9, 2019) (demonstrating the “variety of diverse ways” that “Keller’s limitations on integrated bar activ-ity have been internalized in the integrated-bar states”). The Eighth Circuit’s decision below is fact-bound to the specific manner in which North Dakota collects fees from attorneys. The Eighth Circuit’s rul-ing upholding the North Dakota State Bar’s specific procedure for informing attorneys how to deduct non-chargeable expenses from their fees will have little im-pact beyond that state.

B. The Eighth Circuit’s decision is sound

even if Janus applies.

Finally, review is not warranted here because the Eighth Circuit’s decision is consistent with the First Amendment. Notwithstanding Fleck’s best attempts to suggest this case involves a compulsory fee which he must affirmatively opt out of paying, the affirmative act of paying funds into the State Bar is wholly within the control of Fleck and other attorneys when they re-ceive their annual license fee statement. An attorney

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remains free to write a check that includes the greater amount funding non-germane expenses, or to write a check that reflects only the amount of his or her annual license to practice law.

Thus, this case differs in critical respects from the situation addressed in Janus, as well as Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986), and Knox. Hudson involved deductions auto-matically taken from a teacher’s paycheck absent the affirmative act of a timely objection made by the teacher. 475 U.S. at 295-96. And Knox and similar pub-lic sector union cases involved “a collectively bargained dues checkoff procedure [whereby] the employer trans-fers money the employee has earned directly to the un-ion, unless the protesting employee affirmatively ‘opts out.’ ” Pet. App. 24a.

The simple and dispositive factual difference in this case is that “North Dakota attorneys pay the an-nual license fee themselves.” Id. There are no auto-matic transfers completed by an employer or other third party that require North Dakota attorneys to af-firmatively opt out of paying. Instead, North Dakota attorneys control their own purse strings and volun-tarily make payments into the State Bar.

Fleck seems to attach constitutional significance to a difference between subtraction and addition. See Pet. at 31-32 (noting that the State Bar’s billing proce-dure lists a “total” license fee that includes non- germane expenses that must therefore be subtracted by an attorney who chooses not to fund the State Bar’s

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political expense, and implying that the Constitution requires instead that an attorney engage in addition by adding an amount that includes non-germane ex-penses). Which of two mathematical calculations an at-torney must perform is irrelevant, however, where the amount of the payment the attorney ultimately makes is always wholly within his or her control. And, as the Eighth Circuit observed, these attorneys are “sophisti-cated and trained to understand and appreciate legal communications.” Pet. App. 11a.

All told, the Eighth Circuit correctly concluded that Janus did not alter its prior decision because at-torneys in North Dakota exercise full control over their “right to pay or refuse to pay dues to subsidize non-chargeable expenses [as] clearly explained on the fee statement and accompanying instructions[.]” Pet. App. 12a. And the choice to pay or refuse to pay is provided to North Dakota attorneys in advance of them deliver-ing a payment. Id. Thus, the clear and affirmative con-sent requirements outlined in Janus are present here even assuming those requirements apply with respect to voluntary payments made by an attorney in full con-trol of his or her own purse strings.

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CONCLUSION

The petition for a writ of certiorari should be de-nied.

Respectfully submitted,

JAMES E. NICOLAI Counsel of Record OFFICE OF ATTORNEY GENERAL 500 N. 9th Street Bismarck, ND 58501 (701) 328-3640 jnicolai@nd.gov

Attorney for Respondent Petra Mandigo Hulm, Secretary/ Treasurer of State Board of Law Examiners